Juan Carlos Ruano v. U.S. Atty. General
Appeal Court of Appeals for the Eleventh Circuit, Case No. 04-14356

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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
No. 04-14356 ELEVENTH CIRCUIT
DECEMBER 21, 2005
THOMAS K. KAHN
CLERK
BIA No. A95-552-332
JUAN CARLOS RUANO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
(December 21, 2005)
Before DUBINA and KRAVITCH, Circuit Judges, and STROM*, District Judge. PER CURIAM:
*Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by designation.

Juan Carlos Ruano petitions this court for review of the Board of Immigration Appeals's ("BIA") final order which affirmed the Immigration Judge's ("IJ") decision to deny Ruano asylum and withholding of removal.

The issue presented in the petition is whether Ruano provided substantial evidence of past persecution entitling him to a presumption of future persecution.

In Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc), cert. denied, 125 S. Ct. 2245 (2005), this court set forth the standard of review regarding the substantial-evidence test in immigration cases:

This court reviews administrative fact findings under the highly

deferential substantial evidence test. Farquharson v. United States

Att[‘]y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001); Lorisme v. INS,

129 F.3d 1441, 1444-45 (11th Cir. 1997). Under the substantial

evidence test, we view the record evidence in the light most favorable

to the agency's decision and draw all reasonable inferences in favor

of that decision.

We "must affirm the BIA's decision if it is ‘supported by reasonable,

substantial, and probative evidence on the record considered as a

whole.'" [Al] Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.

2001) (quoting Lorisme, 129 F.3d at 1444-45). Thus, we do not

engage in a de novo review of factual findings by the BIA. Similarly,

we cannot find, or consider, facts not raised in the administrative

forum, nor can we "‘reweigh the evidence from scratch.'"

Mazariegos v. United States Att[‘]y Gen., 241 F.3d 1320, 1323 (11th

Cir. 2001) (quoting Lorisme, 129 F.3d at 1444-45); see also [Al]

Najjar, 257 F.3d at 1278 ("Courts of appeal sit as reviewing bodies to

engage in highly deferential review of BIA and IJ determinations. . . . [End Page 2]

Commensurate with this role, we cannot engage in fact-finding on

appeal, nor may we weigh evidence that was not previously

considered below."). In sum, findings of fact made by administrative

agencies, such as the BIA, may be reversed by this court only when

the record compels a reversal; the mere fact that the record may

support a contrary conclusion is not enough to justify a reversal of the

administrative findings. Farquharson, 246 F.3d at 1320 ("To reverse

a factual finding by the BIA, this Court must find not only that the

evidence supports a contrary conclusion, but that it compels one.");

see also 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of

fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary . . . ."); Kenyeres v. Ashcroft,

538 U.S. 1301, [1306],123 S. Ct. 1386, 1388, 155 L. Ed. 2d 301

(2003) ("A reviewing court must uphold an administrative

determination in an immigration case unless the evidence compels a

conclusion to the contrary."). 386 F.3d at 1026-27.

After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we are unable to review adequately the petition because of the lack of specific findings on past persecution made by the IJ. Accordingly, we vacate the BIA's order and remand this case to the IJ with directions to make explicit findings about whether Ruano established past persecution and the applicability of a presumption of a future threat to Ruano's life or freedom.

VACATED and REMANDED.

[End Page 3]

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